Wednesday, November 11, 2009

Not everyone can be saved. I believe that there are kids who, as a result of abuse and neglect, are so devoid of conscience and empathy that they will likely never become productive members of society. I say this with deep regret and anguish.

But how do we know who will mature, grow, learn and develop a conscience and who will stay stuck in their antisocial, violent and destructive ways? How can we make sure that we're not keeping the next Charles S. Dutton unnecessarily behind bars when he is ready and able to walk back into the world and give back something good, if not extraordinary?

When you push away all the legal mumbo jumbo, this was the question at the heart of yesterday's Supreme Court hearing over juveniles in the criminal justice system. Technically, the justices were asked to decide whether it is unconstitutional to sentence kids who have committed non-homicide crimes to life behind bars without the possibility of parole. In reality, the justices were weighing salvation. Is it okay to sentence a 13-year-old to a mandatory life term for raping a 72-year-old woman? How about throwing away the key for a 17-year-old involved in a series of burglaries? If it would be constitutional to hit an 18-year-old with a guaranteed life behind bars, why should someone just a month short of this landmark birthday be spared the same fate?Some on the bench, including Justice Ruth Bader Ginsburg, seemed to be pushing for a bright line, an age below which no defendant could be sentenced to life without parole. Others, primarily Chief Justice John G. Roberts Jr., seemed intent on avoiding an artificial cutoff in favor of an approach that would call on judges to take into account the offender's age in determining whether the punishment was appropriate. Both approaches have merit.

Unless you draw a bright line, there will be kids who, depending on the state or county they're prosecuted in, will be thrown into prison for the rest of their lives with no opportunity to prove they deserve a second chance. In Florida, for example, kids as young as 10 or even 5 or 6 can in theory be sentenced to life without parole. It's never happened -- and such a sentence would be outrageous -- but it could. Statistics provided by lawyers for the two juveniles whose cases were argued yesterday point to the fact that 84 percent of kids sentenced to life without parole for non-homicides are African American. The numbers, in and of themselves, don't prove that black kids are unjustly targeted for such harsh sentences, but it certainly raises concerns about the possibility that they are.

The cleanest way to prevent an absurd result would be to declare that it is unconstitutional for anyone under the age of 18 to be hit with the mandatory life sentence. After all, 18 is used in a variety of circumstances to determine eligibility for privileges and responsibilities -- from voting to owning a gun to entering into a legally-binding contract. The age of 18 is -- importantly -- also the age the justices settled on in a 2005 case from Missouri to conclude that the death penalty was unconstitutional when applied to juveniles. And therein lies the problem -- and paves the way for the chief justice's approach.

The "kid" in the Missouri case, Christopher Simmons, was about nine months shy of his 18th birthday when he decided he wanted to murder someone. He recruited two other teens and planned to break into a home, tie up the victims with duct tape and throw them off a bridge. According to the court's decision, Simmons reassured his friends that "they'd get away with it" because they were minors. Simmons stuck to his plan: He broke into the home of Shirley Crook, whose husband was away on business, bound her hands, legs and face with duct tape, and threw her -- alive -- off a bridge; her body was discovered the next day by local fishermen. Simmons was convicted and sentenced to be executed, but because he was not 18 years old when he committed the crime a majority of the justices determined he could not be put to death. Because of the court’s 2005 decision no offender who murders as a teen -- even as a 17-year-, 364-day-old teen -- can be subject to capital punishment. I understand the misgivings of those who can't uncategorically embrace this decision.

But what about kids who don't kill but commit other crimes, including rape or violent assault? To deny a 13-year-old a second chance after serving a lengthy prison sentence seems grotesque to me. He will not be the same person at 23 that he was at 13; he is likely to be more different still when he is 33 or 43. Those who commit violent acts must face serious punishment, but all juvenile offenders locked up for non-homicide crimes should eventually be given a second chance to prove that they are worthy of being trusted to rejoin society. My hope is that most of these offenders will be mature and rehabilitated enough to earn release. My gut tells me some of them will never be.